40. We were also concerned about whether the provisions
of the Bill meet the requirements of due process under Article
6 of the Convention. There are various safeguards in the proposed
measures.

- The suspected international terrorist would
be able to appeal to the Special Immigration Appeals Commission
(SIAC), which is a properly constituted judicial tribunal, against
his or her certification within three months.[32]
- The SIAC must in any case review the certification
as soon as reasonably practicable after the end of a period of
six months starting on the date the certificate was issued, or
starting on the date when any appeal was finally determined, whichever
is the later, and then every six months, with a possibility of
more frequent reviews. If the SIAC disagreed with the Secretary
of State's assessment, it would have to cancel the certificate,
but otherwise could make no order.[33]
- In initial appeals and on the six-monthly reviews,
the interests of the person certified would be represented before
the SIAC by a person appointed for that purpose in any part of
the proceedings from which the person and his or her legal representatives
were excluded on national security grounds.[34]
- In initial appeals and on the six-monthly reviews,
there would be an appeal on a point of law from the SIAC to the
Court of Appeal on matters of law.[35]
- A suspected international terrorist would,
in theory at any rate, be able to be released on bail if detained
for immigration purposes.[36]

41. On the other hand, where the SIAC cancels a certificate,
under clause 27(9) of the Bill the Secretary of State can simply
make another certificate 'whether on the grounds of a change of
circumstance or otherwise'(our emphasis). The Home Secretary
in his oral evidence recognized that this was too loose a formulation
to make clear the intention that the power to issue a second certificate
should be exercisable only if circumstances had changed or
the decision of the SIAC had been reversed on appeal on a point
of law.[37]
We welcome the Home Secretary's undertaking to reconsider the
wording of clause 27(9).

42. Furthermore, a number of normal legal safeguards,
including judicial review and habeas corpus, are excluded.
First, unlike normal provisions authorizing a person's detention,
there is no requirement that the Secretary of State's suspicion
or belief, the foundation for issuing a certificate under clause
21 or (in respect of asylum-seekers) clause 33, should be reasonable.
We raised this with the Home Secretary,[38]
who was prepared to look again at ways of introducing greater
objectivity and transparency into the decision-making process.
We welcome this undertaking.

43. Secondly, no court or tribunal other than the
SIAC will have jurisdiction to entertain proceedings for questioning
a certification or action made or taken by the Secretary of State
under these provisions of the Act, or a decision or action of
the SIAC (apart from the appeal to the Court of Appeal usually
available on a point of law).[39]
Only the SIAC would be able to entertain proceedings which call
a derogation issue in question. This would be mitigated by giving
the SIAC the same powers as the High Court or Court of Session
would otherwise have had in such proceedings.[40]

44. There are also special provisions relating to
asylum seekers. The Bill would allow the Secretary of State not
to consider an application for asylum in certain cases. The Refugee
Convention imposes duties in respect of people who are outside
their country of nationality[41]
and unwilling to return because of a 'well-founded fear of being
persecuted for reasons of race, religion, nationality, membership
of a particular social group or political opinion'.[42]
The duties include a duty not to return the person 'to the frontiers
of territories where his life or freedom would be threatened on
account of his race, religion, nationality, membership of a particular
social group or political opinion.'[43]
This is the so-called 'principle of non-refoulement.' However,
Article 1F of the Refugee Convention provides that the Convention
as a whole is not to apply to any person with respect to whom
there are serious reasons for considering that

(a) he has committed a crime
against peace, a war crime, or a crime against humanity, as defined
in the international instruments drawn up to make provision in
respect of such crimes;

(b) he has committed a serious non-political crime
outside the country of refuge prior to his admission to that country
as a refugee;

(c) he has been guilty of acts contrary to the purposes
and principles of the United Nations.

In particular, Article 33(2) provides that the benefit
of the principle of non-refoulement

... may not ... be claimed by a refugee whom there
are reasonable grounds for regarding as a danger to the security
of the country in which he is, or who, having been convicted by
a final judgment of a particularly serious crime, constitutes
a danger to the community of that country.

45. Where the Secretary of State certifies that an
applicant for asylum is not entitled to the benefit of the principle
of non-refoulement on the ground that he or she falls within Article
1F or Article 33(2) of the Refugee Convention, and that the removal
of the applicant from the United Kingdom would be conducive to
the public good,[44]
the Bill would restrict the due-process rights of the applicant.
He or she would be able to appeal to the SIAC against a refusal
of asylum, order for deportation, or other decision, but

- the SIAC would have to start by considering
the statements in the Secretary of State's certificate, and dismiss
the application if the SIAC agrees with the statements;[45]
- if the SIAC disagrees with the statements,
it would have to quash the decision or action in question, leaving
the application for asylum undecided until the Secretary of State
has made a new decision;[46]
- the Secretary of State would then be free to
reach a different decision or the same one as before, whether
or not there has been a change of circumstances (although the
Home Secretary agreed to look again at this);[47]
- there would be an appeal to the Court of Appeal
from a decision of the SIAC on a point of law only;[48]
- there would be no other judicial means of challenging
a decision by the Secretary of State under these provisions.[49]

46. These provisions relating to asylum-seekers and
others appear to be capable of satisfying the due-process requirements
of the ECHR, as explained in relevant decisions of the European
Court of Human Rights, before the SIAC. The SIAC is a fully-fledged
judicial tribunal. It was established under the Special Immigration
Appeals Commission Act 1997 specifically to give a judicial hearing
in immigration and deportation cases involving national security
matters.[50]
The SIAC now receives and evaluates the grounds for the decision.
National security is protected by withholding the information
(where necessary) from the appellant and his or her legal advisers,
and appointing a special representative to inspect the evidence
and represent the appellant's interests before the SIAC.

47. As a result of this compromise, there is reasonable
protection for the appellant's rights, because (a) the SIAC can
offer a full hearing on the merits of the case leading to a final
determination except in relation to asylum applications; (b) the
use of the nominated representative to represent the interests
of the applicant, where the applicant and his or her representatives
are prevented from examining evidence on national security grounds,
adequately balances the needs of the state and the interests of
the applicant so as to maintain the fairness of the hearing; and
(c) there is an opportunity to appeal on points of law.

48. However, before the Court of Appeal (or, on appeal
from that court, the House of Lords) there would be a risk that
the appeal procedure would be insufficient to meet the standards
of Article 5(4) or Article 6 of the ECHR, because there is no
provision under the legislation (or under the Special Immigration
Appeal Commission Act 1997) for the nominated representative to
represent the applicant's interests in the appeal.[51]
There might therefore be a violation of the ECHR if

- the nature of national security considerations
in the case unduly inhibited an applicant or his or her representatives
from formulating a point of law, or presenting his or her case
in respect of a point of law, for the purpose of an appeal, or
- new evidence were presented on the appeal on behalf of the
Secretary of State which, for reasons of national security, could
not be adequately tested by a representative on behalf of the
applicant.

49. We raised with the Home Secretary in oral evidence
the possibility that an appellant's due-process rights might not
be adequately protected on appeal from the SIAC to the Court of
Appeal or the House of Lords in the absence of the nominated representative
who appeared before the SIAC.[52]
Having heard the Home Secretary's response, we remain concerned
about it. We recommend that the role of the nominated representative
should be extended to include participating in appeals from the
SIAC in appropriate cases, including cases arising under the Bill.
We accordingly draw this to the attention of each House.

50. We also welcome the undertaking by the Home
Secretary to consider the possibility of providing that, after
the first six months of detention, a detainee's case should be
reviewed more frequently than at the six-monthly intervals presently
proposed in the Bill.[53]

There is a need to introduce
adequate safeguards into this legislation. Consideration should
be given to amending these provisions to include ... a requirement
that there should be reasonable grounds for suspecting that the
information in question would be relevant to a criminal inquiry
or that the data subject has committed an offence, and a requirement
that a pre-disclosure assessment be made of the proportionality
of disclosing information on a particular individual in the context
of the offence in question. Consideration should also be given
to limiting the very wide power to make disclosures "for
the purposes of initiating ... any such investigation or proceedings."
We draw the attention of each House to these provisions, and consider
that necessary safeguards should be provided to ensure that they
are compatible with the right to privacy.[58]

54. The provisions were dropped from that Bill in
the face of opposition in the House of Lords, in order to facilitate
the passage of the remainder of the Bill before the general election.
The provisions reintroduced in the current Bill still contain
no express provision for appropriate safeguards to ensure that
the powers will be used only in circumstances where their use
is proportionate to a pressing social need. The Secretary of State
would have power to exclude disclosures to overseas investigators
in a limited range of cases, but has no obligation to do so, and
could not prohibit disclosures by a Minister of the Crown or the
Treasury.[59]
The new provisions do not immediately appear to meet the Committee's
criticisms quoted above.

55. The matter was raised with the Home Secretary
in oral evidence.[60]
One of his officials, Mr Harnett, sought to persuade us that the
Treasury's intention had been to meet the Committee's concerns
in the re-drafting of the clauses

First of all, as we understood
it, the Committee had a concern about limiting this disclosure
to public authorities, and we have done that. In clause 20 we
have described a "public authority" as that which has
the same meaning ... as in section 6 of the Human Rights Act.
So we feel that that not only deals with the specific point about
disclosure, but the fact that we have anchored this ... to section
6 of the Human Rights Act means that any disclosure that a public
authority makes must be compatible with Article 8 of the Convention
... and thereby it has to meet the tests of reasonableness and
proportionality which we understand the Committee was concerned
about in January. The other protection that we have looked at
in drafting this part of the Bill is that which the Data Protection
Act will apply, so we have attempted to address, and believe we
have addressed, the Committee's concerns in those respects ...
we still think that it is necessary that public authorities should
be able to disclose information to others in relation to whether
criminal investigations or proceedings should be initiated. We
think it is extremely important that this Act does enable us to
do that. Our view is that we and when I say "we"
it is the Treasury primarily that has been responsible for this
part of the Bill that you have before you have sought to
take account of your concerns in the way I have described.[61]

We welcome this evidence of willingness to take account
of our view, but we may wish to examine the revised provisions
further.

57. The Bill would also create a new offence of incitement
to religious hatred against people or groups within or outside
the United Kingdom,[63]
and extend the aggravated penalties for certain racially-motivated
offences to those who commit those offences with religious motivation.[64]
The maximum penalty for inciting both racial and religious hatreds
would be 7 years' imprisonment (compared to 2 years for the current
offence of inciting racial hatred).[65]

58. These provisions engage the right to freedom
of expression under ECHR Article 10(1). They would be prescribed
by law, and so capable of being justified under Article 10(2)
if they have a legitimate aim, and are a proportionate response
to a pressing social need to advance that

aim. The legitimate aims would be the protection
of the rights of others to be free from abuse, and the protection
of public order. There would be little difficulty in establishing
a pressing social need for action. The Human Rights Committee
at the United Nations, in its Concluding Observations earlier
this month on the United Kingdom's latest periodic report under
the ICCPR, noted the recent upsurge in religious harassment and
attack, and urged the United Kingdom to 'extend its criminal legislation
to cover offences motivated by religious hatred, and [to] take
other steps to ensure that all persons are protected from discrimination
on account of their religious beliefs.'[66]
As long as the legislation is applied in a way that focuses closely
on the prohibited purpose and outcome of speech, that is the incitement
of hatred on religious grounds, it is therefore likely to be possible
to justify it as a necessary and proportionate measure to protect
the rights of others under ECHR Article 10(2), bearing in mind
the provisions of ECHR Article 17 (no right to engage in any activity
or perform any act aimed at the destruction of any of the Convention
rights and freedoms) and Article 20 of the International Covenant
on Civil and Political Rights (duty of states to prohibit propaganda
for war, and any advocacy of [inter alia] religious hatred
that constitutes incitement to discrimination, hostility or violence).

59. To satisfy ourselves on this matter, we asked
the Home Secretary, in oral evidence, about the scope of the proposed
offences, particularly as the Bill does not define 'religious'
in any way except to make it clear that a religious group is one
defined by religious belief or the absence of religious belief.[67]
We were glad to have it confirmed that the Bill would not restrict
freedom to express opinions and beliefs, including those which
are critical of some or all religions, whether expressed seriously
or satirically.[68]

60. We also asked the Home Secretary about his view
of the relationship between the new provisions and the common-law
offence of blasphemous libel.[69]
The latter protects the Christian churches (or perhaps only the
Church of England) against having doctrines, beliefs and ceremonies
ridiculed. This runs the risk of causing a violation of rights
under Article 10 of the ECHR. It is also regarded by non-Christian
religious groups and atheists as protecting religious sensibilities
asymmetrically in a way that has no objective and rational justification,
giving rise to allegations of discrimination in relation to rights
to freedom of belief and expression under Articles 9 and 10 of
the ECHR. The European Commission and Court of Human Rights have
so far refused to hold blasphemy laws to be disproportionate interferences
with rights under those Articles, or unlawful discrimination under
Article 14.[70]
However, the dynamic interpretation of the ECHR as a living instrument
may lead to a change of view. We were therefore pleased to
learn that the Home Secretary is not committed to the view that
the present state of the law of blasphemy is in tune with the
equality-based and respect-based arguments which would be likely
to be used to justify the interference with freedom of expression
potentially occasioned by the provisions of the Bill on incitement
to religious hatred. This, too, is a matter to which we may
wish to return in the future.

62. We regard the provisions relating to police
powers contained in clauses 88 to 92 of the Bill as being in need
of additional safeguards and mature consideration, and accordingly
draw them to the attention of each House.

63. Clauses 93 to 97 of the Bill contain a proposal
to extend the powers of constables on the street to require anyone
to remove any item which the constable reasonably believes is
being worn wholly or mainly to conceal identity, and to seize
an item which the constable reasonably believes the person intends
to wear for that purpose. There is already power to do this in
England and Wales, in a locality for which a superintendent has
authorized it on the ground that it is expedient to do so to incidents
involving serious violence or people carrying dangerous instruments
or offensive weapons.[73]
The Bill would extend the existing power by allowing an inspector
rather than a superintendent to give the authorization, and by
allowing it where the inspector reasonably believes that it is
expedient to in order to prevent or control the commission of
any offences (not just serious violence or the use of offensive
weapons.) It would also extend the whole set of powers to Northern
Ireland.

64. The removal of face coverings may be a matter
of sensitivity to certain people, for example on religious grounds.
These may include Muslims, especially Muslim women, and particularly
at the moment. The provisions risk being seen as authorizing an
unreasonable and disproportionate interference with their dignity,
their right to respect for private life under Article 8 of the
ECHR, and their right to manifest their religion under Article
9. Furthermore, the provisions may be considered disproportionate
to the problem they seek to remedy since they extend a power to
less serious offences while reducing the level of authority needed
to exercise it. We consider that the measures relating to the
powers of police to remove face coverings should be subjected
to the most careful scrutiny on human rights grounds, and accordingly
draw them to the attention of each House.

65. Clauses 97 to 100 of, and Schedule 7 to, the
Bill contain provisions which would allow the Ministry of Defence
Police and the Transport Police to operate as constables in the
areas of ordinary constabularies in some circumstances.

66. The provisions relating to the MDP were originally
contained in the Armed Forces Bill introduced to Parliament in
the 2000-01 session. They were examined closely by the Commons
Select Committee which considered the Bill but eventually endorsed
by it with qualifications. They were dropped from it in the Lords
as part of the pre-election dealing.

67. Alongside these provisions, we observe that clause
76(3)-(6), in Part 8 of the Bill, would permit special constables
appointed by the Atomic Energy Authority to exercise all the powers
and privileges (and be liable to the duties and responsibilities)
of a constable at any place within 5 km of a nuclear site. They
would have the same powers and responsibilities at any place outside
that area if they are protecting nuclear material in transit or
pursuing people reasonably believed to have unlawfully removed
or interfered with, or attempted to remove or interfere with,
nuclear material being guarded by them. The powers extend to United
Kingdom waters adjacent to Great Britain.

68. The powers which would be conferred are capable
of engaging rights under Articles 2, 3, 5, 6, 8, 9, 10 and 11
of, and Article 1 of Protocol No. 1 to, the ECHR. The ordinary
constabularies are subject to elaborate mechanisms designed to
provide safeguards for those rights, including subjection to various
Codes of Practice, recording requirements, complaints procedures,
and training programmes. These safeguards usually make it possible
to say that the exercise of police powers which interfere with
Convention rights will normally be justifiable within the terms
of the ECHR. It is not clear how those safeguards will be applied
to, and operated by, the Ministry of Defence Police, the British
Transport Police, and the Atomic Energy Authority special constables.
Until the extent to which the safeguards surrounding the procedures
of Home Office police forces will apply to the Ministry of Defence
Police, the British Transport Police, and the Atomic Energy Authority
special constables in their new functions is clarified, we are
unable to be confident that the Bill provides adequate safeguards
against abuse of or interference in human rights. We draw these
matters to the attention of each House.

- whether safeguards attaching to a European
arrest warrant will suffice to meet the requirements of the right
to liberty under ECHR Article 5; and

- whether any provisions relating to deportation and extradition
satisfy the requirements of the right to be free of the death
penalty under Article 1 of Protocol No. 6 to the ECHR and the
right to be free of torture and inhuman or degrading treatment
or punishment under Article 3 of the ECHR (from which Articles
no state is permitted to derogate under any circumstances), and
the Geneva Convention on the Status of Refugees 1951.

73. Any Orders made under the powers proposed in
the Bill would be scrutinized by the Joint Committee on Statutory
Instruments. Orders might be invalid to the extent of any incompatibility
with Convention rights. However, if an order were to amend primary
legislation (which it would have power to do), it would itself
be regarded as primary legislation for the purposes of the Human
Rights Act 1998, section 21(1). A court might make a declaration
of incompatibility in respect of it, but an incompatibility would
not affect the validity or effectiveness of the order.

74. We consider that it will be important to ensure
that the procedure for making orders adequately safeguards human
rights. Since other Committees are currently examining different
aspects of the proposals, we make no detailed comment on them
now, but we may decide to revisit the matter in the future.

75. We have considered other provisions of Chapter
13 of the Bill, but have concluded that it is not necessary to
draw attention to any of them at this time. As noted above, we
may in any case report further on this Bill at a later stage in
its passage through the two Houses.